6.  The applicant was born in 1966 and lived until his arrest in Moscow.
7.  In 1998 the applicant helped a former Interior Minister of Belarus, Mr Z., to set up an NGO which was meant to unite former military and police officers in the fight against “human rights violations” and “lawlessness”. According to the applicant, Mr Z. had entrusted him with the tasks of finding, among members of the organisation, those physically and psychologically fit enough to become bodyguards, and of training them. On 7 May 1999 a group of unidentified individuals kidnapped Mr Z. His whereabouts remain unknown.
8.  The applicant further alleged that he had been involved in the establishment of “the security service” for the former Vice President of the Belarus Parliament, Mr G. However, on 16 September 1999 Mr G. disappeared. His car was discovered abandoned in a remote area with its windows broken and blood stains inside. According to the applicant, the media attributed both disappearances/kidnappings to the Belarus authorities.
9.  At the beginning of 2000, the applicant moved his family to Russia. He, however, continued visiting Belarus to take part in its political life. In particular, as a member of a Belarusian opposition party, Gromada, the applicant participated in demonstrations, meetings and other political activities organised by the party. On a number of occasions, the applicant was arrested and subjected to inhuman and degrading treatment in Belarus. Each time he was deprived of his liberty, he was forced to remain on his knees on a concrete floor with his hands cuffed behind his back.
10.  The applicant provided the Court with a copy of “Free citizen certificate no. 0327”, allegedly issued by the Belarus Social Democratic Party on 17 October 2005 and attesting to the applicant’s having become a member of that party on that date. The certificate was in Russian, had the applicant’s photo attached and was signed only by the applicant.
11.  The applicant stated that he had decided to move to Russia permanently in 2008 because he had feared for his life. A private security agency in Moscow had hired him as a bodyguard.
12.  At the same time, the applicant continued his political activities in Belarus. In February 2010 a number of prominent leaders of the Belarusian opposition parties initiated a campaign entitled “Tell the Truth”, in which the applicant also took part, including by providing financial support. The applicant stressed that the aim of the campaign had been to “awaken Belarusian society, which is living amid lies”. Repressions followed: the most active participants in the campaign were arrested and criminal proceedings were instituted against them; the main office was raided; and documents were seized.
13.  In March 2010 the applicant visited Belarus and, acting on orders from his employer, ordered bullet-proof vests and camouflage uniforms. The applicant assumed that Belarusian law-enforcement officials, suspecting him of attempting to provide opposition members with the vests and uniforms, had decided to fabricate criminal charges against him.
14.  The applicant also submitted that when his Belarusian passport had expired in 2010, he had applied for a new one and the Belarusian authorities had issued it without delay. The authorities had not connected him to any criminal case, questioned him in respect of any criminal charge or attempted to arrest him.
15.  On 7 April 2011 an investigator from the main department of the Belarusian Ministry of the Interior resumed the investigation in a criminal case that had been pending since 19 February 2001 against unidentified individuals suspected of aggravated robbery. Four other cases of aggravated kidnapping, including that of a minor, and extortion committed in May and June 2000 were joined to that case. On 28 April 2011 the investigator issued a decision stating that the applicant was the prime suspect in the case and making a detailed account of every criminal act of which the latter stood accused. The criminal offences were punishable by up to fifteen years’ imprisonment. The investigator also noted that, having been convicted by a Belarusian court on 7 September 2001 for causing accidental death in a road traffic accident, the applicant had been relieved of the remainder of his sentence on 16 August 2002 by an Amnesty Act. On 28 April 2011 a deputy Prosecutor General of Belarus authorised the applicant’s arrest and an international arrest warrant was issued.
(b)  Extradition proceedings
16.  On 16 May 2011 the applicant was arrested in Moscow.
17.  On the following day the Ostankinskiy District Court in Moscow, having noted the gravity of the charges against the applicant, the fact that he was on the wanted persons’ list and the absence of any authorisation for the applicant to reside, permanently or temporarily, in the Russian Federation, ordered his detention for forty days until the formal request for extradition could be dealt with. It also stated that the applicant had been arrested on the basis of an international arrest warrant, which, as confirmed by the Belarusian authorities, was still in force, and that the preliminary examination of the extradition issue had not revealed any circumstances that could have led to a decision to refuse extradition. The District Court further observed that it had taken into account the applicant’s arguments that he was ready to stand bail and that he was not fit for detention conditions given the poor state of his health, and had dismissed them as irrelevant. The decision was upheld on appeal by the Moscow City Court on 6 June 2011, with the appeal court confirming the District Court’s findings that the applicant was likely to reoffend, abscond and obstruct the course of justice.
18.  On 20 June 2011 the Belarusian Prosecutor General’s Office (hereinafter “the Belarusian PGO”) wrote to the Russian Prosecutor General’s Office (hereinafter “the Russian PGO”) submitting a formal request for the applicant’s extradition and assuring their Russian counterpart that the applicant’s criminal prosecution was not politically motivated or based on any discriminatory grounds.
19.  Four days later the District Court extended the applicant’s detention until 16 November 2011, using the same formula as in the initial detention order. The District Court also noted that the Belarusian prosecution authorities had to carry out a number of additional procedural measures before the applicant’s extradition could be effected, and therefore needed additional time. The decision became final on 25 July 2011, when the Moscow City Court endorsed the District Court’s reasoning.
20.  On 24 August 2011 a deputy Prosecutor General of the Russian Federation accepted the request for the applicant’s extradition in view of the criminal charges pending against him in Belarus. The decision stated, in particular, that the applicant had been charged with three counts of aggravated kidnapping, including one of a minor, committed for the purpose of extorting money and property, and one count of aggravated robbery committed within an organised criminal group in February 2001. The listed offences were punishable under Articles 126, 162 and 163 of the Russian Criminal Code and carried a penalty of over one year’s imprisonment. The statutory time-limit for criminal prosecution had not expired under either the Russian or the Belarusian criminal codes. The applicant had not acquired Russian citizenship and there were no circumstances precluding his extradition.
21.  Following an appeal lodged by the applicant on 5 September 2011 against the extradition order of 24 August 2011, in which he argued that he risked political persecution, torture and unfair criminal conviction in Belarus given his active involvement in the opposition movement, on 4 October 2011 the Moscow City Court upheld the deputy Prosecutor General’s decision. The City Court considered that the applicant had failed to produce any evidence in support of his claims that he risked persecution, including on political grounds, torture and unfair trial in Belarus. At the same time, the Belarusian PGO provided the Russian authorities with a letter of commitment guaranteeing respect for the applicant’s rights, including the right not to be subjected to torture, inhuman and degrading treatment and the right to a fair trial. The City Court noted that the Belarusian authorities had also guaranteed that the applicant would stand trial only for the criminal offence in respect of which the extradition request had been made and that the criminal case against him had no political, religious, racial or other discriminatory motivation.
22.  The applicant appealed to the Supreme Court of the Russian Federation, repeating the arguments that he had put forward in the appeal against the prosecutor’s decision.
23.  In the meantime, on 2 November 2011 the District Court issued a further order extending the applicant’s detention until 16 May 2012. The court’s reasoning was identical to that employed in the two previous detention orders. The City Court upheld the decision on 30 November 2011, noting that it had authorised the applicant’s extradition in its lawful and well-founded decision of 4 October 2011.
24.  On 14 November 2011 the Supreme Court of the Russian Federation dismissed the appeal lodged by the applicant, and upheld the Moscow City Court’s decision of 4 October 2011 to extradite.
25.  The applicant was released from custody on 16 May 2012 by a decision of the Ostankinskiy District prosecutor of Moscow who, having cited the European Court’s decision to apply Rule 39 of the Rules of Court and a decision by the Russian immigration authorities to award the applicant temporary asylum until 14 May 2013, decided that his further detention was unwarranted.
(c)  Asylum proceedings
26.  According to the applicant, on 25 May 2011 he submitted a request to the Russian immigration authorities seeking refugee status. His request was not duly registered until 31 August 2011.
27.  On 20 December 2011 the Moscow branch of the Federal Migration Service (hereinafter “the FMS”) dismissed the applicant’s asylum request. The authorities reasoned that an analysis of the information and materials available to them had indicated that the applicant had never been involved in any political or public activities in Belarus. Having studied his “Free citizen certificate no. 0327”, they were not convinced of its authenticity, given that it bore no official insignia confirming that it had been issued by the political party. As the applicant had applied for asylum only after his arrest with a view to extradition, they concluded that his application had been motivated by his wish to avoid prosecution for purely criminal conduct.
28.  On 14 May 2012 the Moscow branch of the FMS granted the applicant temporary asylum for one year, until 14 May 2013. Having mainly copied the reasoning from the decision of 20 December 2011, the authorities reiterated the European Court’s decision under Rule 39 of the Rules of Court indicating to the Russian Government that the applicant should not be extradited to Belarus until further notice. Citing humanitarian grounds, the authorities stressed that the Court had decided to apply Rule 39 in the applicant’s case because it had not yet entirely ruled out the risk that the applicant might face persecution and inhuman treatment in Belarus.
29.  The Constitution guarantees the right to liberty (Article 22):
“1. Everyone has the right to liberty and personal integrity. 2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
30.  The CIS Convention on legal assistance and legal relations in civil, family and criminal cases (“the Minsk Convention”), to which both Russia and Belarus are parties, provides that in executing a request for legal assistance, the requested party applies its domestic law (Article 8 § 1).
31.  A request for extradition must be accompanied by a detention order (Article 58 § 2). Upon receipt of a request for extradition, measures should be taken immediately to find and arrest the person whose extradition is sought, except in cases where that person cannot be extradited (Article 60).
32.  A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest must be sent, containing a reference to the detention order and indicating that a request for extradition will follow (Article 61 § 1). A person may also be arrested in the absence of such a request if there are reasons to suspect that he has committed, in the territory of the other Contracting Party, an offence for which extradition may be requested. The other Contracting Party must be immediately informed of the arrest (Article 61 § 2).
33.  A person arrested pursuant to Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1).
34.  The term “court” is defined by the Russian Code of Criminal Procedure (“the CCrP”) as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCrP as “an official empowered to administer justice” (Article 5 § 54).
35.  Chapter 13 of the CCrP (“Measures of restraint”) provides for the use of measures of restraint, or preventive measures (меры пресечения), while criminal proceedings are pending. Such measures include placement in custody. Custody may be ordered by a court on application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years’ imprisonment, provided that a less restrictive measure of restraint cannot be used (Article 108 §§ 1 and 3). A period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions of up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). If the grounds serving as the basis for a preventive measure have changed, the preventive measure must be cancelled or amended. A decision to cancel or amend a preventive measure may be taken by an investigator, a prosecutor or a court (Article 110).
36.  A judge’s decision on detention is amenable to appeal before a higher court within three days of its delivery date (Article 108 § 11 of the CCrP). A statement of appeal should be submitted to the first-instance court (Article 355). While the CCrP does not provide for a time-limit during which the first‑instance court should send the statement of appeal and the case file to the appeal court, Order no. 36 of 29 April 2003 by the Judicial Department of the Supreme Court of Russia requires that, after the expiry of the three-day time-limit for appeal, the first-instance court should submit the detention file to the higher court. Having received this file, the second-instance court should examine the appeal lodged against the judge’s decision on detention within three days (Article 108 § 11).
37.  Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of parties to criminal proceedings (Article 125 § 1). The competent court is the court with territorial jurisdiction over the location at which the preliminary investigation is conducted (ibid.).
38.  Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. Upon receipt of a request for extradition not accompanied by a detention order issued by a foreign court, a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought. The measure must be applied in accordance with established procedure (Article 466 § 1). If a request for extradition is accompanied by a detention order issued by a foreign court, a prosecutor may impose house arrest on the individual concerned or place him or her in detention “without seeking confirmation of the validity of that order from a Russian court” (Article 466 § 2).
39.  On 4 April 2006 the Constitutional Court examined an application by Mr N., who had submitted that the lack of any time-limit on the detention of a person pending extradition was incompatible with the constitutional guarantee against arbitrary detention. In its decision no. 101‑O of the same date, the Constitutional Court declared the application inadmissible. In its view, the absence of any specific regulation of detention matters in Article 466 § 1 did not create a legal lacuna incompatible with the Constitution. Article 8 § 1 of the Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, which in the case of Russia was the procedure laid down in the CCrP. That procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. Accordingly, Article 466 § 1 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure or the time-limits established in the Code. The Court also refused to analyse Article 466 § 2, finding that it had not been applied in Mr N.’s case.
40.  On 1 March 2007 the Constitutional Court, in decision no. 333‑O‑P, held that Articles 61 and 62 of the Minsk Convention governing a person’s detention pending the receipt of an extradition request did not determine the body or official competent to order such detention, the procedure to be followed, or any time-limits. In accordance with Article 8 of the Minsk Convention, the applicable procedures and time-limits were to be established by domestic legal provisions.
41.  The Constitutional Court further reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than forty-eight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention, in that it required a court to examine whether the arrest was lawful and justified. The Constitutional Court held that Article 466 § 1 of the CCrP, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty‑eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure and within the time-limits established in Chapter 13 of the CCrP.
42.  On 19 March 2009 the Constitutional Court, by decision no. 383‑O‑O, rejected as inadmissible a request for a review of the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure; it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore, the disputed norm cannot be considered to violate the constitutional rights of [the claimant]”.
43.  On 10 February 2009 the Plenary Session of the Russian Supreme Court adopted Directive Decision No.1, aimed at clarifying the application of Article 125 of the CCrP. It stated that the acts or inaction of investigating and prosecuting authorities, including a prosecutor’s decision to hold a person under house arrest or to remand him or her in custody with a view to extradition, could be appealed against to a court under Article 125 of the CCrP. The plenary particularly emphasised that in declaring a specific decision, act or failure to act on the part of a law-enforcement authority unlawful or unjustified, a judge was not entitled to annul the impugned decision or to order the official responsible to revoke it or to take any particular actions, but could only instruct him or her to rectify the shortcomings indicated. Should the authority concerned fail to comply with the court’s instructions, an interested party could raise that matter before a court, and the latter could issue a special decision [частное определение], drawing the authority’s attention to the situation.
44.  On 29 October 2009 the Plenary Session of the Russian Supreme Court adopted Directive Decision No. 22, stating that, pursuant to Article 466 § 1 of the CCrP, only a court could remand in custody a person in respect of whom an extradition check was pending when the authorities of the country requesting extradition had not submitted a court decision to place that person in custody. The judicial authorisation of placement in custody in that situation was to be carried out in accordance with Article 108 of the CCrP and following a prosecutor’s petition to place that person in custody. In deciding to remand a person in custody, a court was to examine whether there were factual and legal grounds for applying the preventive measure. If the extradition request was accompanied by a detention order of a foreign court, a prosecutor was entitled to remand the person in custody without a Russian court’s authorisation (Article 466 § 2 of the CCrP) for a period not exceeding two months, and the prosecutor’s decision could be challenged in the courts under Article 125 of the CCrP. In extending a person’s detention with a view to extradition, a court should apply Article 109 of the CCrP.
45.  In a recent ruling, no. 11 of 14 June 2012, the Plenary Session of the Russian Supreme Court held that a person whose extradition was sought may be detained before the receipt of an extradition request only in cases specified in international treaties to which Russia was a party, such as Article 61 of the Minsk Convention. Detention under those circumstances should be ordered and extended by a Russian court in accordance with the procedure, and within the time-limits, established by Articles 108 and 109 of the CCrP. The detention order should mention the term for which the detention or extension had been ordered and the date of its expiry. If the request for extradition was not received within a month – or forty days if the requesting country was a party to the Minsk Convention – the person whose extradition was sought should be released immediately.
46.  For relevant reports reviewing the situation in Belarus, see Puzan v. Ukraine (no. 51243/08, §§ 20-24, 18 February 2010) and Kozhayev v. Russia (no. 60045/10, §§ 55-60, 5 June 2012).